With thanks to Lauren Sutherland for drawing attention to CNZ v Royal Bath Hospitals NHS Foundation Trust & Anor [2023] EWHC 19 (KB), a decision which does not appear to be on BAILIII yet. This note will be updated once it is available online. The decision is of particular interest for its consideration and application of Montgomery v Lanarkshire [2015] AC 143.
The claimant suffered cerebral palsy and brought an action against the Trust responsible for a hospital and against the Health Secretary responsible for midwives. As for the arguments:
It is the Claimant’s case that her mother requested caesarean section (CS) but her requests were refused or delayed. In addition the Claimant asserts that her mother was never offered elective caesarean section (ECS) despite (on her case) such being a reasonable treatment and additionally that when the hospital finally decided to deliver the Claimant by CS the operation was carried out negligently late and therefore the acute profound hypoxic ischaemia which the Claimant was enduring in the last minutes of her time in the womb before birth and for 3 minutes after her birth was not avoided or ameliorated as it should have been.
It is the Defendants’ case that in 1996 ECS was not a reasonable treatment option to offer during the antenatal period, so it was not offered, that offering and advising normal vaginal delivery was the correct practice and that the Claimant’s mother did not request caesarean section antenatally. In addition the 1st Defendant asserts there was no negligence during the labour and the parents’ requests for CS were granted in a timely way.
The decision is a long one (some 107 pages) so I will not attempt a full summary of the issues in this note.
In relation to breach of duty the Court found that the clinician failed to discuss the necessary reasonable treatment options with the parents, failed fully to inform them of the risks and benefits of the reasonable options and failed to allow them to make an informed choice, then failed to act on their informed choice and failed to act urgently.([314]).
The Court went on to hold that the delay caused by the breaches of duty was causative of the whole of the Claimant’s brain damage ([323]).
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